It seems unlikely that many “Alas” readers are fans of how the liberal website “TalkLeft” has been discussing the Duke rape case (you can find a summary of the case here) . Because although Jeralyn of “TalkLeft” is a liberal, she’s also a defense attorney, and her inclination is to suggest that the accusation is false.
Nonetheless, she’s worth reading because she is a defense attorney (and an excellent one, from all I’ve heard), and there’s a good chance that if the Duke rape case ever winds up in court, the defense lawyers will tell the jury and the press something similar to Jeralyn’s current speculations. Jeralyn’s posts on this case (so far) can be read here, here and here.
Right now, it appears that any story told by a defense attorney will need to explain these elements in particular:
- “Medical records and interviews showed that the woman had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally.”
- Evidence that a physical fight took place: Bruises and injuries to the alleged victim (who I’m going to call Mary Doe from now on), some of Mary Doe’s fingernails broken off and and found at the scene, items belonging to Mary Doe (such as her cell phone) left behind.
- Mary Doe’s claim that she was raped by three men at the party. Why would she lie?
Here’s the narrative Jeralyn suggests – I’ve pieced it together from a few different places in the post and comments here:
The accuser arrived at the house at 11:30. The other dancer was already inside. They began to dance. After a few minutes, they felt threatened by the racial and sexual comments, left and got in a car outside. They both were coaxed to go back in and they did, but got separated.
There could have been a physical assault without a sexual assault… There apparently was an issue about the money. They paid up front and were angry she quit after a few minutes and wanted their money back. That could have resulted in a physical altercation.
One interpretation could be that the nails did not come off during the alleged rape but during a physical assault over the money. …
In short, it doesn’t look like anything incriminating or confirming a rape was found in the [house] or the vehicle.
The implication is that Mary Doe has made up the rape charge for revenge against the Lacrosse players who beat her up during a fight over money.
What about the medical evidence? In an earlier post, Jeralyn quoted a pathologist to suggest that this evidence cannot prove rape:
DR. MICHAEL BADEN, FORENSIC PATHOLOGIST: Usually, a physician can’t tell consensual from non-consensual. They can tell whether there’s been intercourse or not intercourse, but not whether it’s consensual because one can have bruises and certain injuries from consensual sex and one can have no injuries from non-consensual sex.
So a defense attorney could argue that all the medical evidence shows is that Mary Doe had sex with someone before she went to the Lacross players’ house that night. Alternatively, if the DNA evidence conclusively shows that the accused men (whoever they turn out to be) did have sex with Mary Doe, it will be claimed that the sex was consensual prostitution, followed by a fight over the money.
I believe Mary Doe is telling the truth. But Jeralyn’s narrative accounts for all the known facts and probably can’t be proven wrong. If this case ever comes to a court, I expect that the defense will tell a story pretty much like the one Jeralyn is telling, and it won’t surprise me if a judge or a jury buys it.
* * *
Meanwhile, at the vile FrontPageMag.com, David Yeagley wrote an incredibly racist, woman-hating, stripper-hating article about the Duke rape case (Delusions of Mediocrity, Echidne, Sadly, No! and Feministe have fisked the article). There is simply too much offensive material to quote it all, but here’s a few examples to give you the flavor of it:
The reports say the woman is a divorced, 27-year-old “mother” of two, attending North Carolina Central University. She is not a person of note, and is said to do exotic dancing as a side job to pick up extra cash. …
For me as a reader, I had to stop in amazement at the contempt Yeagley managed to get across with the simple device of scare quotes around the word “mother.” You almost have to admire the efficiency – a lesser racist woman-hater might have taken a whole paragraph to pack in the hatefulness Yeagley can communicate just with punctuation.
Then I started reading again, and had to stop again almost instantly because the vileness of the scare-quoted mother is nothing compared to the vileness of how Yeagley uses the phrase “person of note.”
So, that black woman said, “No,” eh? First, she’s in a profession where she’s expected to do tricks for clients. Second, she’s walking into a house full of young, drunken athletes, who happen to be white. Third, she called the police and complained once; then she went back, but then left. And then she went back again! That’s a peculiar way of saying “No,” it seems to me. …
But, exotic dancing…and then to cry “abuse”? This may be pushing victimhood beyond reason. …
(Yeagley in comments:) The woman went there to “turn’em on.” That’s what she’s getting paid for. That she would three times RETURN, when she had every reason to fear, shows excessively poor judgement on her part. She was literally asking for it, for whatever happened anyway.
Remember, if you’re black, and a woman, and a sex worker, then you’ve already consented to have sex, and you can’t be raped. You’ve literally asked for it (in the figurative sense of the word “literally”). And if you think otherwise, why that’s just plain pushing victimhood beyond reason!
(By the way, “Minnobserver” at Feministe pointed out that although Yeager claims to be a adjunct professor at the University of Oklahoma College of Liberal Studies, he’s not listed on their webpage. I just phoned the UO CLS office, and the person there says he’s never heard of Yeager and doesn’t have him listed as any kind of professor or instructor.)
* * *
Yeagley is an obvious, over-the-top racist and woman-hater, and it’s hard to imagine anyone other than fellow racist woman-haters taking him seriously (not that Frontpage will suffer any blacklash among conservatives for printing this garbage).
But what’s striking to me is that if a defense such as the one Jeralyn at TalkLeft outlined works, it will work because it appeals to Yeagley-like attitudes in the jurors and in the public.
Why are people so quick to believe that if a sex worker says she’s been raped, she must be lying?
Why is it a viable strategy for a defense attorney to virtually admit that their clients are the sort of scum who’d gang up on a lone woman, beat her up, and take her money – but then ask the jury to find that their clients are credible witnesses, and the beat-up woman who claims she’s been raped is not?
Because in our society a black sex worker is not a “person of note,” but rich white athletes are. What’s rare about Yeagley isn’t that he thinks it, but that he says it so overtly.
This thread is open to feminist, pro-feminist and feminist-friendly posters only. If you don’t think you fall into Amp’s definition of “feminist, pro-feminist and feminist-friendly,” and you wish to make a comment, you may do so at the cross-post on Creative Destruction.
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Oh, I ran into loads of guys like that one when I was a stripper. They were outraged that we wouldn’t also have sex with them, not even for money.
Why it is a ‘viable strategy’ is that the prosecution must prove their case beyond a reasonable doubt.
As for Dr. Baden’s quote, I can’t help but wonder if that was taken out of context. Doctors most certainly can, and do, testify that injuries are consistent with nonconsensual intercourse. They can’t testify that yep, it was or wasn’t rape, but they can absolutely say that bruises, contusions, and so on were consistent with the type of sexual activity the witness described.
What most people don’t realize about this kind of case is that the victim DOES have a motive to lie. That is, she has a motive to lie and say she was not raped. She has proof of a struggle, of injuries, and they took her money and made sexual demands on her. They were the ones who lied about names, numbers, and services desired. If she just lied and said, no, she wasn’t raped, she was attacked, they’d settle out of court, and the sexual element would not be open for discussion.
And there is no proof at all the woman is lying. None. What does she get? Her reputation and background thoroughy trashed. . To believe TalkLeft, you’d have to offer some motive for her to lie. She has more motive to lie about NOT being raped than she has to tell the truth about being raped.
Calling her a liar doesn’t get rid of the physical evidence, either. And Badon is not exactly what I’d call a neutral authority; from reading his books he seems to be quite the publicity hound, and it’s my impression that he goes for the spectacular find.
mythago’s right about why this strategy might work. Is there a perponderance of evidence that the rape occured? Definately. Is the evidence that a rape occured clear and convincing? Yes. Is there a reasonable doubt a rape occured? Unforntunately, based on the evidence in this post, yes. But if “We didn’t rape her, we just beat her up over money,” is their best defence, their goose is, or should be cooked. If I was a judge in this case I would be looking up the maximum sentences I could hand out for aggravated assault, assault on a woman, robbery, underaged drinking or providing alcohol to underaged persons, and anything else my law clerks could find consistant with the admitted facts.
Unforntunately, based on the evidence in this post
Luckily, the jury will be presented with actual evidence and not merely what’s been in the newspaper or blog posts. I don’t think a jury would be particularly impressed with “We beat her up, just not sexually!”, myself.
Jeralyn’s commentary on this case at TalkLeft is pissing me off. I completely understand the perspective of a defense attorney, and in fact think it’s a noble profession. (No joke – I just interviewed today for a job with my local public defender’s office, appellate division. Anyway.) However, she picks and chooses what she blogs about, and she has chosen to take a tack in this case that is fairly aggressively defending the lacrosse players. I don’t read her blog regularly, but I can’t help but notice all of the posts about the Plame leak case, and I also can’t help but notice that she’s not presenting an aggressive defense of Libby or Rove or Cheney or Bush, when in fact, from what I can tell from the facts I know, they probably do have legitimate arguments they can make in their defense (though I personally think they’re guilty and hope they get nailed for it).
Anyway, point being, she chooses to present aggressive defenses of certain accused persons and not others. The post that irritated me the most is the one where she worries about how this case might hurt Duke’s pocketbook because it happens to be admissions time and some students might decide to go elsewhere.
(And since I’m not a regular TalkLeft reader, if I’m mischaracterizing her Plame coverage, I’ll stand corrected.)
“It’s racism at Duke, all right. Racism against white students.”
“All the racial issues in this story are moot.”
GMAFB.
True, mythago, that’s why I used that qualifier. I would be surprised if the DA has released everything he has to the public.
It seems that Jeralyn, consciously or not, is playing with the blurred boundary between stripper and prostitute that exists in many people’s minds. Unfortunately, she’s also accurately forecasting the defense strategy and the discursive shift we can expect to come with it–the defense will do everything in its power to shift the focus to Mary Doe’s shrewdness, her being a “professional,” and her preoccupation with getting paid. If Doe’s story is recast as simply a commercial transaction gone awry, it goes from being a horrifying gang rape to just another cautionary tale about the evils of prostitution, for johns and hookers alike. It becomes a case of “poor judgment” on the part of those involved, thereby neutralizing any
radicalizing potential.
Whatever her intention, Jeralyn has given a gift to those who believe, a priori, that Mary Doe is lying but who also needed an explanation for all that inconvenient physical evidence. Jeralyn seems to be taking Doe’s mendacity as a starting premise, not a conclusion, and interpreting the physical evidence in light of her antecedent belief that Doe is a lying skank.
Her defense irritates me for a very simple reason: she assumes right from the get go that the victim’ s story is fishy. Why? Anal little technicalities. Stuff that we just don’t care about in non-rape cases.
Rape cases basically lay bare the patriachy’s view of women as nothing but property, and every conviction is a little bit of proof. Every charge of ‘well, women lie about rape” is an endorsement of the view that women have no credibility, and practically guarantees that men will then rape with impunity—and then kick their vicims when they’re down.
I liked this supposition ( in the comments) at talk left: this whole thing has been making me furious from the beginning.
Like Oh well…it’s a small world and a bachelor culture???
Between ginmar’s post about rape versus assault and Amp’s observation that, “Alternatively, if the DNA evidence conclusively shows that the accused men (whoever they turn out to be) did have sex with Mary Doe, it will be claimed that the sex was consensual prostitution, followed by a fight over the money.”, the case of Arlan and Linda Kaufman of Kansas (this is a link to ginmar’s posting of it) comes to my mind.
The Kaufmans sexually assaulted several mentally ill patients in their care, videotaping themselves sexually assaulting some patients and directing other patients to sexually abuse each other in front of a camera. They were also committing fraud at the same time. They were found guilty of 30 charges including involuntary servitude, forced labor, conspiracy, healthcare fraud, mail fraud, and Medicare fraud.
Not one charge of rape or sexual assault was brought against them. Why? There was videotaped evidence of Arlan raping at least one patient. The prosecutor who tried the case for the government said in her closing argument the victims were “uncompensated actors
in a never-ending pornographic show”, and she was supposed to be on the side of the mentally ill raped-for-pornography victims.
Instead of being tried for multiple sexual assaults on mentally ill people, they were tried for fraud and labor violations. When sex has become so subsumed under capitalism, just another financial transaction, so that even the rape of the mentally ill is considered a matter of “uncompensated sex work”, is there such a thing as rape anymore?
It has been well established that people believe it is not possible to rape a prostitute, but what are the consequences for a society when pornstitution ethics saturate a culture to the point that what seems like clear-cut cases of rape (like videotaping unconscious underage girl gangbangs or mentally ill patients) are reframed as “work” violations instead of the horrific and violent crimes they are?
I understand the temptation that Decnavda expresses on letting go of the rape charge to focus on the more easily provable non-sexual assault, robbery and underage drinking charges, but I can’t shake the feeling that’s just not the right way to go. These men committed a premeditated gang rape and to see them punished as if it were a simple “labor dispute” doesn’t sit well with me.
Why? Because when you’re a crusading defense lawyer, those defense-lawyer glasses become permanent. The worldview questions whether every witness is a liar, whether there’s an alternate explanation or possibility of error in every piece of physical evidence … Jeralyn’s defense in this case is driving me nuts, too, and I like her blog. But she’s doing it because she reflexively takes the side of the accused in any criminal proceeding.
Thomas, I believe raging red’s point was that she doesn’t.
Why do people think that if a sex worker says she’s been raped, she must be lying?
1. We already have an economy of sex where the slut is a figure of contempt because she’s like a scab that refuses to honor the picket line. (withhold sex and sexual displays in exchange for a real relationship, a socially approved, heteronormative relationship)
2. You have people like Ariel Levy and Maureen Down running around calling any woman they deem as ftting the image things like bimbo, lickerish, slutty, trashy, whorish, etc. simply be/c they don’t conform to middle class norms of sexual display and sexual behavior.
Its interesting how when a black woman is assulted (by any perp(s) of any race) she is instantly suspect and demonized. Had it been someone, lets say a Halloway for instance, non of the blaming of the victim I see in the press and in many forums of this type would be tolorated. Despite the fact that Ms. H. is missing and presumed killed, the fact that she went off w/a man she just met to have sex, presumably brought drugs from a local and was said to be stupid drunk has not tarnished her lilly image. Does this woman have to be presumed to be killed by these guys before the real issue is addressed…I guess not, b/c dead or alive, raped, or assaulted, black women never met the lilly standards of virtue no matter their background. White thought about non white women…Hmmm…
last I knew, if I don’t fulfill my contract to build someone’s web site, I am not likely to get beaten up. the notion that this is acceptable — beat up someone or some group who supposedly fails to perform promised services — it only works precisely because of the contempt for anyone who doesn’t conform to conventions about how women should display themselves and what kind of sex they can and cannot have to be considered human.
Actually, I do not think the rape charges should be let go – at least not yet. I was just commenting on the evidence and legal standards as presented here. If I was the prosecuter and this was the extent of what I had when it was time for trial, MAYBE I would let it go then and focus on assault, etc., but even if this is all the prosecution has now, now is exactly the wrong time to let up on investigating the rape charges. Indeed, I think that would be unethical. If the best defense the players have is to admit the rape, that’s blood in the water. If Mary Doe can identify a guy who was there and maby held or hit her but didn’t rape, now might be good time to talk to his attorney about a plea to a lesser assault charge in exchange for testimony.
That should be:
If the best defense the players have is to admit the assault,
First, off even if this strategy works then the guys are at the very least guilty of assault, a crime. The defense has other issues to contend with as well as her physical injuries. We do not yet have–the testimony of the 2nd woman who was dancing, the anonymous person who sent the email (I think it is one of the lacrosse players.), and the neighbor, who challenges some of the defenses time line. We also don’t know about DNA evidence, and we don’t know what was captured, if anything on the numerous camera and recorders that were seized. I have a feeling we are going to see more damning evidence coming out.
This is very important–they found her id, purse, cell phone (I believe.), money, and fingernails at the scene. Why would this women run out of the house with one shoe and leave all of these thing behind. If her goal is to rip the guys off, she would not do this. She would bring her money, unless they assaulted her. We have strong evidence a physical assault occurred and the forensics indicates it was also sexual in nature.
Why would these guys have all of this laying around their house 2 days later? Some could say this is a sign of innocence because they supposedly didn’t throw out the incriminating evidence, but I don’t think it is. If nothing serious happened, then as upstanding guys they could call the escort service and give her things back to her after all the cops didn’t show up for two days (which of course we know they are a bunch of losers so there is not a hoot owl’s chance in hell they are going to do this. LOL!). If her money is still there at the scene, then why the hell is Ryan Mcfadden so pissed after the “party” is over. They didn’t get ripped off. I really want to know why all of her belongings are in the house 2 days later, including her fingernails. Why are they leaving these things laying around their house? Are they extremely messy, are these their trophies, or do they feel so entitled to assault this woman that they don’t even both disposing of the evidence? I don’t know, but the facts that her things are still in the house would have to be thoroughly explained by the defense.
And why the hell is a so called liberal blog backing up the future republicans of America? Maybe a few of them are liberal, but it is not that likely. I understand this woman is a defense attorney, but defending guys who are blatant misogynists, criminals, poster boys for crude behavior, racists, and probable rapists, should not be consistent with the vision of a so called liberal blog. They at least need a counter person…..who talks about victims rights. C’mon. They are just a few notches below Rush Limbaugh.
not a person of note
My head just exploded.
Well, I’m a Republican myself, and I see no possible defense for these vermin. The actual charge of rape has yet to be proved; but as Amp and others have shown, the defense is going to have a lot of questions to answer. At a minimum, the attitude of the team members (both individually and collectively) speaks of a sense of entitlement.
I don’t generally read FrontPage, but I’m glad Amp linked it. FP is a good example of why I think some neocons work so hard at trying to prove their “conservative” credentials that they turn into the most unhinged right-wing bigots.
Re: FrontPage
Compare and contrast.
. . .
I can’t help feeling, reading this argument, that it’s a profound perversion of “beyond a reasonable doubt” to have a system where rape is essentially by definition a matter of reasonable doubt.
I’m all for defense attorneys going all Perry Mason even in cases where I think the defendant is guilty, but I’m not so hot on them invoking what amounts to generic epistemological doubt that we can know anything.
I suggest that at this point either the legal definition of rape is wrong or it’s being misapplied; that by now, when you seem to need ironclad proof that she didn’t secretly consent in order for it to be rape, that that needs to *change*.
Maybe as a legal matter, beating someone up that you’ve had violent sex with should count as rape if she says it was, regardless of whether the sex secretly was consensual. I mean, it’s not like a guy who wants to avoid a false accusation from a woman he’s just had violent sex with absolutely *has* to beat the woman up. He could say, “You know, the sex was great, but I’m afraid of you making a false accusation, so I’m just . . . not going to beat you up today.”
Bitch|Lab, et al.: I was driving home from work today and listening to Chicago radio, when a deejay joked about having once asked, “If you pay for time with a hooker and you don’t get sex, does no still mean no?”
And everyone laughed. It was knee-slappingly funny. Haw haw.
I stopped reading TalkLeft when Schwarzennegar was running for governor. Jeralyn Merritt got so agitated by commenters who supported the women who charged the Gropinator with assault that she declared the discussion over and closed the comments.
Rape is a tough crime to prosecute. It revolves around either consent or identity. Identity is getting easier to figure out as a result of DNA, but consent just seems to grow more complex. The man’s belief that consent was given must be reasonable, though by what standard is less than clear. Since women are unlikely to consent to being beaten and robbed, and leaving one’s fingernails, cellphone and wallet are unlikely to be associated with consensual relations with anybody, but especially with a prostitute (I know she was a dancer but I am assuming that an allegation along those lines is going to be made), I am assuming that this woman was likely raped by somebody, if she indeed did have intercourse. But when it comes down to it it’s a crime of who you believe, and unless everybody — accused, victim and jury — come from the same socio-economic pool, it’s quite likely that who gets believed has more to do with who sits in the jury box than what actually happened. Someone like Alex Kelly can get convicted because his victim was basically his neighbor, and the jurors were also from the same community.
Well, I understand Jeralyn’s perspective. Yeah, it can annoy me. But I also have blogged with her and I consider her character to be one of integrity.
She’s not their defense attorney. If she were, I’d expect her to do the best she could do for the guys, if they’re proclaiming their innocence. Ethically, that’s the correct thing to do.
In outlining the case and its loopholes, she merely points us in the direction of what to expect. And the reality is that:
a) Biases exist.
b) The guys with the cash are likely to buy the best defense team possible. Thus, classism is at work, perhaps moreso than racism and sexism. Though there’s an abundance of all three.
Even without those three elements, gangrape is very, very hard to prove. There’s way more ‘he said’ than ‘she said’ and the prosecution generally has to demonstrate convincingly that each of the ‘he’s’ is lying. Even if inconsistencies exist in their stories, a jury has to try and determine if some are talking truth and some not and which is which, or if all of them are lying.
Assume they conclude that all are lying. That alone STILL doesn’t prove the rape occurred. It makes it likely they are hiding something, and a jury will lean toward ‘the rape happened’. But it still leaves some room for doubt.
Like you, I see enough to lean towards ‘some are guilty’. Especially since someone close to me was gangraped and they put her on trial instead of the rapists.
But I also understand how the law and logic work. The best strategy the prosecution might have is to shake them up and show they’re lying then cut a deal with a guilty plea for assault instead of rape. That way, they evade the sex offender lifetime tag but still gain some punishment for their crime.
We can cry ‘no fair’ and it isn’t, but that’s a potential outcome. Jeralyn’s guilty of nothing to point out what she does. And sometimes justice takes longer to achieve. Even if the guys beat the rap, should any of them ever rape again, it may well lead to an easier conviction then.
Justice is imperfect and every outcome is not just. It’s anguishing, but the best possible justice system only can guarantee that the system remain just, not that every guilty person will be nailed.
Personally, I’m still hoping some shreds of irrefutable evidence emerge. The best thing going for the prosecution is that first-timers often trip themselves up before their lawyers enter the scene.
Rape victims can feel multiply raped by what the system does to them. Which is why street justice seems like the only answer. If a real rape victim resorts to that, they may have to depend on someone just like Jeralyn to defend them, too. And I’m sure she’d work just as hard for them, too.
It’s far from perfect, but with competent attorneys and judges, it’s the best that it can be.
Btw, I anticipate that Ryan guy will be convicted because of his email, if he’s one of the guys actually accused of the rape.
Yeah, that’s very good, but in no other crime does the victim labor under such a burden, and where the defendant have such a wide variety of gifts handed to him. Jerilyn’s pretenses add to those gifts becuase she coddles the sexist presumptions that underly every attack on every rape victim.
Thomas, I believe raging red’s point was that she doesn’t.
Exactly. Thanks, mythago. I get the concept of defense attorneys zealously defending their clients. But she’s posting on a blog, not arguing for a client in a courtroom. So why has she chosen to zealously defend the Duke boys but not BushCo? (Don’t misunderstand that I have any sympathy for BushCo, but if her mission is to present the defense attorney position, as she claims, then politics should be irrelevant.)
Based on the post that annoyed me regarding her concerns about the ramifications to Duke’s admissions, I suspect that class is the issue.
I say this (and this is just me speculating after several glasses of wine on a Friday night) because I used to read TalkLeft, but what turned me off was a post Jeralyn wrote about Martha Stewart. She posted the address of the prison she was in for anyone who wanted to send her letters of support, and it just really rubbed me the wrong way because, while I do feel that Martha was kind of wronged by that prosecution, I was just thinking, I’m not about to feel any more sympathy for her than for all of the other women in that prison who are most likely poor, non-white, and likely in there because of the War on Drugs. Those women are much less likely to have the large cushion of support from friends and family that Martha Stewart had, so why should I send her letters of support? Something tells me she’ll be just fine. (Hell, she got out and had a brand new TV show waiting for her. What do the rest of those women have waiting for them?) Maybe I was being extra-sensitive, but I found it a bit offensive.
Here’s the question I’ve been pondering all day, in light of this case, rape cases in general, and my job interview with the public defender – does a defense attorney HAVE to resort to arguments about a woman’s status / character / sexual history / and all of that shit in order to zealously defend a client who is charged with rape? I seriously hope not, because, as I said upthread, I think the job of a criminal defense attorney is a noble one, but I do NOT want to make those kinds of arguments. Isn’t this precisely the kind of thing that has to be changed in order to make the kinds of changes to our patriarchal society that feminists want to make? What’s a feminist defense attorney to do?
You know, something else has been bugging me ever since reading that crap at TalkLeft: it’s the claim that somebody called 911 becuase they thought the woman was drunk. Turns out she was hysterical and incoherent. I don’t know where they got ‘drunk’ from, but it’s a naked attempt to actually slam the victim when in fact that bit supports her story.
Okay, that last part came off as kind of faux-eager, but I’ve seriously been thinking about this issue all day. I’ll blame the faux-eagerness vibe on the Zin.
Yeah, and I meant “earnest,” not “eager.” I’m stepping away from the computer now.
Side note: Who is that foresnic pathologist (or whoever) that so many people quote? The one who says you can’t tell rape from normal sex by physical evidence alone? Where does he work, what are his qualifications, what’s his track record? Is he actually a good practitioner, or one of those “for-hire experts” who’ll say damn near anything at a trial for the right price? Do other experts agree with him?
I haven’t seen anyone challenge this guy’s claim, and yet I have no doubt that many rape cases *can* be distinguished from consensual sex by the damage inflicted (although I’ll agree it may not be obvious). The statement just doesn’t make any sense except as a subtle way to imply that a victim “liked it rough” and was thus deviant and less “rapeable”.
Ginmar,
“it’s the claim that somebody called 911 becuase they thought the woman was drunk.”
Do the players also say that when she came to the party she was drunk or intoxicated? I think they do, according to someone’s lawyer. That, in turn, fits with what the clerk at the Kroger store told about her when she was unable to come out of the car.
And didn’t her friend have the cell phone to call the police? Didn’t she call police previously?
“yet I have no doubt that many rape cases *can* be distinguished from consensual sex by the damage inflicted (although I’ll agree it may not be obvious).”
Yes, in some, maybe many, but not, obviously, all cases. Since she’s a suspected prostitute, she may have some signs on her private parts that would look similar to ones of forced sex on a non-prostitute. Just a thought.
Igor, I’m getting the impression you’re not a feminist. If that’s correct, please stop posting on this thread (read the notice at the end of the post).
What are you talking about? Prostitutes are not anatomically different from any other person. A female prostitute who has had rough sex looks the same “down there” as any other woman who has had rough sex. A female prostitute who has been brutally raped will not be less injured than any other woman who has been brutally raped.
Well, I do not think about women in any negative way, do not support any discrimination or mistreatment. I do not think that women are inferior etc. I believe that women should have much more rights in many developing countries. Would I pass?
On the other hand, I do not think that being a feminist should mean being uncritical (or one-sided in the interpretatons) to the facts of the case.
Igor,
On the other hand, I do not think that being a feminist should mean being uncritical (or one-sided in the interpretatons) to the facts of the case.
Then you are not a feminist. Women have been traditionally disbelieved, mocked, and punished for complaining about sexual abuse. Women have always been abused and raped. Always. Everywhere. And the responses have ranged from “you asked for it,” to “you’re lying,” to “it’s all in your mind.” We as a culture have a long and shameful history of not respecting a woman’s word when it comes to her body…and privileging that of the attcker/rapist over hers.
So a feminist, in a rape case, would first and foremost giver her support to the woman. To balance the weight of cultural disapproval and anger at her for accusing men of a horrific crime (which some don’t consider to be a crime – just their privilege to do whatever they want to women).
And yeah, I’m all for those guys getting their day in court (although the legal system itself is prejudiced against sexual assault victims, laying burdnes on them that would be totally unacceptable in any other trial situation), but as feminists, we must be aware of the cultural forces behind this case, of the victim always always alwaysa always becoming the target of attacks and accusations… and we support her. Because we know it can very easily be us. And in many cases it has already been.
Oh – sorry. Forgot. You’re a man. Therefore the odds of something like this happening to you are negligent. Lucky you. You’ll never have to explain to a bunch of opposite-sex officers that actually, wearing a miniskirt does not mean that you want to have sex with all comers. Or insist that smiling and being friendly in general does not mean that a guy on the street can jump at you and shove his hand down your pants ’cause he thought you wanted it. Or convince a bunch of grownups that your best friends’ brothers molested you and you’re not just making it up (btw – the last few lines are an amalgamation of my expereince and other people’s).
So no, you’re not a feminist. And you’re also quite ignorant regarding the world women – especially sexually assaulted women – live in. Go away and get an education.
– Tefnut
Here is why rape is different, brought to you by a committed feminist:
The issue is consent. If there is consent there is no crime. This is unlike most other crimes, like murder, for instance, where there is a dead body and presumptive proof that a crime was committed — now, there can be things like self-defense that serve as a defense to the crime, though they usually just mitigate the intensity of the allegations but it’s always presumed that a “wrong” was committed when one person ends up dead. It isn’t normally wrong to have sex with someone. Forensic details that show bruising are important but not conclusive (I would certainly consider them to be very pertinent).
The other problem (typified by the case of William Kennedy Smith, if you remember) is that whether an accused is guilty of rape is supposed to revolve around the accused’s belief — because it’s his conduct and his belief that is at issue, not the victim’s. So if a victim reasonably believes she said no but the accused reasonably believes she said yes, the proper verdict is not guilty.
I’m not defending the way rape victims are treated, or the way that onerous presumptions are almost automatically made against the credibility of a woman who claims she has been raped. But the nature of the crime makes room for unique issues (and defenses) that don’t normally exist with other crimes. Self-defense is the most analogous situation, where a person overreacts to a perceived threat — this would be like a man saying that he believed a woman consented to have sex with him because she smiled at him when he said hello to her (notwithstanding that she made her intentions much clearer after he demanded sex). Concepts of objective reasonableness are supposed to prevent miscarriages of justice, but you just never know how the jury is going to react.
Barbara
And yet, we have men on this very board who can read about the dancer’s torn-off nails, bruises, and other physical wounds, and still assert that there is “no evidence” that the men raped her. IOW, their view of the average woman is so low that they consider it perfectly appropriate to extract “consent” from a woman before sex by beating, slapping, and/or strangling her. Physically overpowering another human being creates consent !!!
If they refuse to understand that physical coercion, involving physical abuse, is not a legitimate way to obtain sexual gratification, it follows that in cases involving a date rape drug or a threat in which no actual physical damage happened, they will also turn every scenario possible into one in which the woman consented.
Small wonder that I don’t think I’d have a chance with these guys on a jury, if it was me acusing some man of rape.
There is no proof she is telling the truth either, and I there is a huge elephant in the corner that no one in the feminsit blogosphere seems to be paying much attention to- namely the first 911 call. Given the timeline and other evidence it seems almost inconcievable that that first caller was anyone other than the second stripper. So the woman she worked the party with made a misleading and factually innaccurate 911 call which cast the players in a very negative less than a half hour before the rape allegations would be made. Shouldn’t that give us pause? Why would she make up a rape charge? I don’t know. But maybe it came from the same thought process that caused her to think stealing a taxi driver’s car and leading police on a high speed chase was also a good idea. This is not the woman or the case in which the femist movement should be haning its hat on. The odds that it is going to end with egg on our faces is just too huge. Thrurgood Marshall’s brilliance in the civil rights movement was in the carefull and deliberate manner in which he chose the issues and cases to take his stand on and advance the cause. Many feminsts have already gone too far on this case and I fear some backlash is inevitable, but we should be doing everything we can to mitigate the damage. Step #1, drop this case asap. Maybe it turns out roses in the end but every day that goes by it’s looking more and more like a loser. The risk just isn’t worth it.
So, there you are. Teamrican concurs that rape cannot happen to a person who is not “of note,” and therefore feminists should have nothing to do with her. Let’s all just quietly creep away now and wait for someone of Martha Stewart’s stature to come forward with an attack story– then we can get involved. That’s what the fight for rights is all about, after all– Finding only nice, pretty people with nice, pretty stories to protect and fight for as long as we’re absolutely, positively sure that the court of public opinion is firmly in our corner.
Well, it’s about that and choosing the right bumper sticker.
It’s almost inconcieveable to you, teamrican, but frankly, you haven’t demonstrated any reason why your conclusions should matter.
And Barbara, bashing rape acquittals on the guy’s belief just means that every rapist will go free the minute he earnestly says, with wide innocent eyes, “She didn’t say no!”
Umn… What other evidence do you mean, exactly?
In any case, so what? Are you saying that it’s hard to believe that, if two women are verbally abused by a bunch of racists, the one who had not been raped (and may or may not have known that her parter was raped) would decide to call 911?
The only thing “misleading” about the first 911 call is that the caller (whoever it was) didn’t want to say who she was or what her circumstance was – which isn’t unusual. Do you automatically assume all anonymous 911 callers are lying? Is knowing someone who made an anonymous 911 call proof of a false rape accusation?
What the 911 call said is that racist remarks were yelled out from people at that house. That’s confirmed as true, because the next-door-neighbor overheard at least one such remark (the “cotton shirt” remark). So the most important aspect of the 911 call – what the partiers were accused of doing – was true.
Then, a half hour later, the woman was sitting in a car – perhaps in shock – and a store manager who thought she might be drunk called the police. As a result, the rape was reported. Why do you find that suspicious?
Are you saying that real rape victims are always eager to report what happened to police immediately? If so, you’re very mistaken – the large majority of victims hesitate to report to police, or don’t report at all. In a large proportion of rape cases, the person who calls the police first isn’t the victim.
Are you saying that it’s unlikely that a real rape victim would sit in a car in what might be a near-shock state?
Seriously, the folks who claim she’s lying go on and on about the 911 calls. I don’t get it. Nothing about the 911 calls even implies that a false rape accusation has been made, as far as I can tell.
So if someone got drunk and did a bad, stupid thing many years ago, that proves she can’t have been raped?
Shorter teamrican: You feminists better back off my Duke buddies.
Several thoughts:
1. RE: the prostitution angle– A prostitute that went to the police and cried rape would be out of a job in no time flat.
2. RE: consent:
>This is unlike most other crimes, like murder, for instance, where there is >a dead body and presumptive proof that a crime was committed …
No one assumes that a murder victim is asking to get killed or that the victim of a robbery wanted to be robbed. But there is this idea that most people want sex most of the time–that right there is a huge part of the problem.
3. >>The other problem (typified by the case of William Kennedy Smith, if you remember) is that whether an accused is guilty of rape is supposed to revolve around the accused’s belief … because it’s his conduct and his belief that is at issue, not the victim’s. So if a victim reasonably believes she said no but the accused reasonably believes she said yes, the proper verdict is not guilty.>>
Define “proper.” Okay, that is really scary. That assumes that the default mode in anyone is willing to have sex with anyone who demands it unless they explicitly and exhaustively say no. And even then, if he “reasonably believes” that you are, for example, playing a sex game by saying no and kicking and screaming, you are still fair game. WTF?
Are you restating the law and or your own opinion?
This is the same argument as saying that I didn’t know how to fill out my tax form correctly, so I am not responsible for any glaring errors I made in my favor. (IRS doesn’t buy that one; in fact, if the IRS gives you the wrong information, you are STILL required to abide by the correct law.)
IE Consent in EVERY sexual encounter must be rigourously verified by both parties, never assumed. And the burden of proof should be on the one one wanting sex, not the one who is saying no; otherwise, there is endless possibility for abuse of the system.
Ampersand,
The problem with the first 911 call is that it was made after alleged rape ocurred. And yet there was no indication of that it the call. If the victim was brutally raped, strangled, beaten etc, won’t her friend say so to police?Plus the caller was giving contradicting information about themselves – “riding in the car”, ‘walking”, “standing”…
Okay, Maribelle, I am stating the law. Whether it’s rape or theft, the law is always aimed at the accused’s state of mind. Take a theft example: Say you rent a car and don’t return it and when you are caught you state sincerely that you thought it was okay because you were going to return the car. Have you stolen the car? It depends — okay, on a lot of circumstances, maybe how long you’ve been gone, whether you changed the license plate, how far away you are from the place where you rented, and so on, but the rental agency’s view of it does not really matter (of course its paperwork might be relevant). Take another example: someone walks into another person’s house in the middle of the night after drinking and when caught states that they really thought that it was his own house. (Happened to the 15 year old son of a friend of mine.) Obviously he’s wrong, but did he intend to “break and enter” into the premises of a third party without their permission? Clearly, the third parties did not give their permission but that doesn’t pre-ordain the result.
The WKS case typifies a very unusual fact scenario, where both parties gave almost the same exact story — Girl and boy meet at a bar, return to boy’s house, go down to beach and willingly engage in sex (i.e., girl testified that she consented), after an hour or so girl and boy start having sex again and boy calls girl by wrong name, making girl very upset at which point she told him to stop, and he did stop after she said to — (here’s the only disagreement) but how long did it take? In that scenario, the boy’s view — it took me a few seconds to realize the import of what she was saying, that she had changed her mind — was probably an objectively reasonable view of the situation and certainly introduce a reasonable doubt that he had intended to rape the girl. (They both agree that he withdrew before achieving a second climax.)
Where there is objective evidence (as alsis says) that there wasn’t simply a different spin on an ambiguous situation, then there should be a different result — the fingernails, etc., along with forensic evidence consistent with force all paint a different picture from that of a girl who was intending to have sex with a group of boys.
So no, that does not mean that all a man has to do to get out of a rape conviction is testify wide eyed about his subjective belief — if that subjective belief is simply not “objectively” reasonble or consistent with other objective evidence of lack of consent. Objectively reasonable means how another person would have seen it. Now that’s a problem, as others have said, because not all people are going to see a standard of objective reasonableness the same way.
And alsis is right, the willingness to discount all of that objective evidence is disgusting bias. Basically, since this woman was “not a person of note” and these boys, apparently, are, there are those who are simply not going to stop until they have tied all objective evidence up into a pretzel of illogical exoneration.
How does a woman believe she “reasonably” said no?
Short of being in an incoherent state brought about by drugs or alcohol, a woman is going to know, not believe, that she said no/not interested/don’t want to.
And if anyone thinks that the reasonableness of any of those statements is relative or subjective, they’re an idiot.
Igor assumes that all people act rationally and soundly after being a victim or or privy to a sexual attack.
Lord knows I acted rationally after I was raped.
Um, I thought this was supposed to be a feminist and pro-only thread. Why are you guys engaging the people who clearly aren’t here? Why is it still okay for them to post here?
Igor, don’t post on this thread any more – any more posts from you here will be deleted.
If you want, you can post on the alternate thread on Creative Destruction.
Soira, what I am saying (as I said above) is that when there is no objective evidence one way or the other (that is, evidence other than the testimony of victim and accused) then it can be difficult to get a rape conviction. As it stands now, there is no legal presumption of credibility given to either the victim or the accused (other than the general presumption of innocent until proven guilty). With respect to accusations of child sexual abuse, some years ago, prosecutors tried to introduce “expert” testimony on the likelihood that a victim would lie about sexual abuse, but this testimony has generally been excluded because credibility determinations are the province of the jury.
It is also possible, of course, to turn the tables and get a conviction when one is not warranted — this is where a woman was indisputably raped but the identity of the attacker is known only through eyewitness identification, and the accused is socio-economically way below the woman. That happens too, though it happens in murder and bank robbery cases as well as in rape. That’s where DNA can level the playing field.
If stating any of these facts (as they seem to me) makes me unfeminist, I’m sorry. Amp is free to kick me off.
Barbara, I’m sorry, but acting like rape is like another crime is ludicrous. It’s not like any other crime. The same rules do not apply. You cannot be neutral about a non-neutral subject.
Barbara, nothing you’ve said so far makes me feel inclined to kick you off.
However, you’re mistaken to suggest that juries are not allowed to convict based on finding one witness more credible than another (if that’s what you are implying). Nor would such a conviction necessarily be unwarranted. The accused should always have a presumption of innocence, but that presumption is not ironclad or limitless.
A common example is drug convictions. Cop says “this man tried to sell me cocaine,” the defendant says “the cop is lying when he said he got the cocaine from me.” That situation is not an automatical acquittal for the defendant; the jury (or judge) can convict based only on that, if they decide the cop’s testimony is more credible than the defendant’s.
As for the “reasonable person” standard, Barbara’s correct, as far as I know, to say that this is a legal standard used by many courts, although I believe the exact details can vary from state to state. The question is not “did the defendant believe that the victim had consented” – a defendant can think he had consent but nonetheless be found guilty of rape. Instead, the question is “would a reasonable person, knowing what the defendant had known at the time, believe that the victim had consented?”
Of course, what a “reasonable person” would think then becomes the point of contention. Feminists would argue for a different idea of what is “reasonable” than anti-feminists would, for example. In my opinion, no one should take anything other than explicit consent or enthusiastic participation to indicate consent.
Amp, if I implied otherwise, then I didn’t mean to: of course juries can convict based on whether they find one person to be more credible than another in the absence of any other evidence. The problem, as you state, is that when there is no other evidence than the testimony of the victim and the accused, who is believed has a lot to do with who is doing the judging — which is to say, rape is a crime where pre-existing cultural beliefs intrude on who is deemed guilty more so than it does with other crimes. Unfortunately, I think a lot of people like to believe that most so-called “date” rape is of the WKS variety — and are willing to give the benefit of the doubt to the male that he reasonably misunderstood the victim in an “ambiguous” situation. Nothing of what I’ve heard so far about the Duke lacrosse incident makes me think that it falls in that category. I think about that woman, sitting alone in her car bruised and robbed of her belongings and I imagine her trying to collect hereself, wondering what she should do next, what she is going to tell her children and her family.
The players have already said there was NO SEX! remember. So, if it turns out there was sex…its gonna be pretty hard to argue that the sex was wanted by the alleged victem if you already said it never happened. credibility shot and the case should be fairly easy after that
As it stands now, there is no legal presumption of credibility given to either the victim or the accused (other than the general presumption of innocent until proven guilty).
Barbara, you’re mixing up your understanding of evidence rules badly here.
There is no ‘presumption of credibility’ at all. The burden of proof on the prosecution is to prove each element of the crime beyond a reasonable doubt.
Sexual-assault laws also do not generally include a ‘reasonable sex partner” standard, where the accuser’s refusal is judged by how a reasonable person would have interpreted her actions. “Reasonable person” is a standard in some areas of law, but not in sexual assault cases, as far as I’m aware.
Hey Amp,
While there was plenty of “fisking” by Sadly, No it didn’t seem particularly “feminist” to me. Obviously if you’ve seen the comments thread that follows and another related one, you’ll correctly sumise I’m not much inclined to give Brad the benefit of the doubt, but other women raised some of the same concerns. The article was horrible, and doesn’t lend it self well to “humor.” Delusions, Jill and Echidne did much better jobs with it; less stomach churning attempts at “humor” and more analysis throughthe apocryphal feminist lens.
mythago, I am not mixed up. The burden of proof is on the government, as it is on any plaintiff in any action. But there is clearly a lot of frustration in the comments directed at how the testimony of women who are apparently reliable and have nothing to gain from reporting rape is often discounted by juries. (You would expect someone who has been accused to deny it.) That there is no presumption of credibility one way or the other is the easiest way I can think of to explain why this happens: juries are just free to ignore any evidence based on their own determination of credibility.
The standard of intent for a criminal conviction is just too hard to get into and varies too much. There may be some jurisdictions where an incredibly wrongheaded but sincere belief that consent had been obtained would be sufficient to defeat mens rea elements of the crime of rape, but most jurisdictions define rape in such a way that the act must not only be against a person’s will, but it must involve “force, threat or intimidation.” The real difficulty is when you don’t have evidence of force, and you are left with the victim’s belief that she was threatened or intimidated, countered by the accused’s testimony that she wasn’t (or it was reasonable for him to believe that she wasn’t under the circumstances). At any rate, it used to be that without the threat of force it was difficult for someone even to bring a rape case. And there are still those who think that it’s not really rape if a woman didn’t put up actual physical resistance, at least where no weapon is involved.
Hi Everyone,
Well being mildly pro-feminist, I not 100% sure that it is appropriate to contribute to the thread, but I would like to share my thoughts; however, I will disappear if they are deemed not good enough.
One thing I and assume most people would like to see ultimately unfold in these cases is that in the end of day justice occurs. Unfortunately, what happens in the media and what it seems in many discussions that people are judged too much on what we perceive as being a person character rather than the facts at hand. For example, on one hand the some people will seem to assume that the duke lacrosse team members are fine up right citizens and deem that the accuser is low class sex worker who is just making things up; on the other hand some people will assume the duke team members are privilege assholes who felt entitled to sex, with or without the consent, from a struggling black mother who needs to work as a stripper for a living. Now, the thing is from my own personal standpoint, if I were to take a guess I would say that the second view is (more) true; however, unless I actually personally know of the accuser and the defendants or at least one them, I do not believe it actually is good to use either viewpoint in determining whether the crime was committed or not, rather the facts that I know of the case should be used to determine guilt or innocence.
From what I know of the facts of the case it appears almost certain the accuser was at least assaulted (e.g. a victim beyond a reasonable doubt) because of the timing of the reports, the witnesses in terms of the timing of the events, and evidence such as her injuries, and the finger nails and the cell phone being left at the duke team members home. For this reason I would say at least 1 or more of the duke team members at the party carried out that assault and probably three people did so based upon the victims account of the assault. In addition, there is good evidence that the assault was also sexual in nature by the accusers own account of what happened and based upon the nurse examination of what her opinion that the victims (in terms of at least being assaulted) injuries were consistent of. Finally, there is evidence by an email that at least of the one duke team member had at least a very disdainful view of the strippers; therefore the victim.
From this evidence alone I would say that 1 or more members of the duke team should be at least convicted of assault, of course the question is who, but their maybe not be enough evidence yet for beyond reasonable doubt for sexual assault. The type of evidence that I would be interested in learning would be evidence that would directly link one or more of the duke team members to the assault and evidence that the assault was sexual in nature. For example, is their evidence underneath the victim’s fingernails that matches one or more members of the duke team or is there DNA that matches the lacrosse team member. Now, we will have to wait and see what evidence is brought about as the investigation unfolds; however, based upon the evidence brought out so far I am thinking could not the victim whether she ultimately gets a criminal conviction or not bring about some type of civil law suit against the some (or perhaps all) of the duke team members for damages related to lost wages and significant suffering because of the assault. In addition, because the threshold for conviction in civil law suits is lower she would likely win and perhaps maybe get signficant compensation, which would at least be so form of justice. Any thoughts?
i am fascinated by the extended conversation here about the legal details of this case. i am much more interested in hearing what people think about the race/class/gender dynamics of what “allegedly” happened than what the legal system has to say about it. let’s be real: the legal system consistently fucks over survivors of sexual assault (especially queer men, trans women, and bio women, layer a stigmatized racial identity (real or perceived) or class status (real or perceived) and this increases the likelihood that the Law will fail you. (props to radical lawyers and judges who are trying to change this by setting new legal precedent in the hopes that Law can help people [who have been screwed by the System] rather than perpetuate the myth that a document that was written over 200 years ago is still wholely relevant today.)
in fact, when i was having a conversation with a friend of mine, who was following this discussion here, on alas, i said something that i think i still believe: i actually don’t care whether the lacrosse boys did it — if they suffer because of this case, good. i’m so tired of [in this case, college educated, white] boys raping people and getting away with it, but more importantly, i’m tired of them thinking/believing/feeling that fucking/touching someone without their consent is normal, and beyond that, enjoyable.
here is my question for y’all:
why do people rape? what is the reward system for rapists?
isn’t it insane that we live in a culture where rather than these boys’ friends being like, ‘man, that’s messed up. don’t do that/why’d you do that/what’s wrong with you?’ they’re like, ‘oh, man, good luck. i hope you get off.’
i actually don’t care whether the lacrosse boys did it … if they suffer because of this case, good.
I’m very curious how your fellow travellers on this blog come down on this statement.
Oh, TangoMan, is “fellow travelers” supposed to be your idea of subtle?
That there is no presumption of credibility one way or the other is the easiest way I can think of to explain why this happens: juries are just free to ignore any evidence based on their own determination of credibility
If juries can ignore the law and evidence, they could certainly ignore a ‘presumption of credibility’.
Hi: Tango,
Well I do not think it is generally good practice to ask or infer how other members o f a blog feel about an individual statement because there are often many quotations from many different points of views, which may at least seem wild and/or outrageous. That said I think by just reading the majority of comments in the thread it would indicate that people are interested in a justice outcome in the case so that they do care whether or not the members of the duke committed rape or not, and I believe that you would have to assume a degree of bad faith on apart of the thread participants to assume otherwise.
That said this is a feminist blog so when it comes to viewing rape cases it can be assumed that in general the participants of the blog will have at least a slightly more favorable view of the accuser compared to the general public. However, I myself am only moderately pro-feminist, and prefer not to make assumptions (rightly or wrongly) about the character of the accuser and defendants and it seems to me based upon the evidence it is essentially beyond a reasonable doubt that the victim was at least assaulted by 1 or more of the duke members and there is evidence that it was sexual in nature although not yet beyond a reasonable doubt do to the fact we do not know, which team members actually committed the assault and the evidence about the type of assault carried out is still forth coming.
mythago, sure, juries can ignore anything they want, but in the case of credibility (unlike the law) they don’t get instructed, and credibility determinations are considered to be “uniquely” the province of the trier of fact, usually a jury. It’s actually something of a frustrating gap, because most women have no reason to report a false rape allegation and yet, it seems to be assumed by many people, that they do.
TangoMan, you definitely are NOT what I’d consider a feminist or pro-feminist. This thread is “feminist and pro-feminist” only. Do not comment on this thread again.
I hate that this may sound like echoing Tangoman, but I think it matters a lot if they did it or not. If they didn’t commit a rape, then “if they suffer because of this case,” it’s not a case of raping and getting away with it; it’s a case of not raping and nonetheless being punished.
I want rapists punished. But to do that, it’s necessary to distinguish between rapists and non-rapists. And punishment of the innocent is fundamentally unjust.
I agree with you that I don’t think we should expect much reform from the court system. The court system is by nature conservative; it follows changes in the larger society, it doesn’t initiate them. Rape will be reduced not because of changes in the law, but because of changes in society.
Amp, I want to pick up on your point about not punishing the innocent. In this case, I think it’s important to see justice done. Conceding at lease a theoretical possibility that what happened here was something other than a gang-rape (theoretical, folks — I think they raped her, and I think it probably happened just like she said), I want to see them punished for what they did. Did they beat her up? Steal her money? Threaten her and her co-worker? Both the criminal justice system and the school make provisions for these things, and even if a jury does not convict on rape, I want to see them punished all the lesser included offenses.
But this *is* what a rape culture does to women. I’m no longer in a place where I can separate out “justice” for unfairly accused men within our rape culture. Women are getting raped at horrific numbers, no matter which numbers you look at. Men being accused of rape unfairly are a statistical fraction of our society. Yet, even so, I do not have an ounce of sympathy for men unfairly accused. They *should*, as should all men, feel and bear the burden of the rape culture in equal and equivalent manners as women do. If my life, my choices, the clothes I wear, the places I go, the men I talk to are all dictated by my socialization within a rape culture, you can be damn sure I don’t view justice as do men.
If society can punish me just because I’m female, men should be able to bear the rare unjust accusation of rape. Because until they can, and until they do bear it while simultaneously focusing their blame on other men, rather than women, then the rape culture will not be dismantled and men will continue raping with impunity.
Hi Thomas,
I agree with your statement about wanting to see justice in terms of at least punishing the Duke team members of all the lesser charges assuming that the jury does not convict on rape. In addition, to the criminal charges, I am wondering if this type of case would also being in the interest of the victim in eventually pursing a civil lawsuit. I could not find too much information about civil lawsuits and rape cases other that this following link , which indicates that they are not in generally to much a panacea for obtaining justice; however, I am thinking in that this type of case where the evidence appears substantially in the victims favor and the potential number of defendants that perhaps it would be worthy pursing.
I’m hesitant to spend too much time talking about “What if they are innocent of the rape.” I admit it’s possible that no rape took place, but I consider this to be a very remote possibility, and one that too many people are focusing on to the near-exclusion of discussing the far more likely possibility that she was raped by a bunch of fucking woman-hating racist assholes.
So, Thomas: Yes, I certainly agree that if by some (as you say, very remote) possibility, these men are all innocent of rape but guilty of other offenses, I would certainly want them convicted of what they are guilty of.
Q Grrl:
I agree that the burden of the rape culture should be spread equally. I disagree that we should be advocating for men to be burdened more; rather, I want all women to have their burdens removed.
But men in general don’t bear the rare unjust accusations. Particular, specific men do, and one very likely result if they are falsely convicted is that they will become rape victims themselves. How does that help anyone? And in general the men who are most vulnerable to false accusations, and the most likely to wind up innocent and in prison, are those who are already oppressed in some other way, be it class or color or something else.
Your argument sets up rape culture as a zero-sum game, but it’s not. One more man falsely accused does not, in any way, reduce the number of women who have been raped, nor does it reduce the harm rape culture does to women. No rape victim, anywhere, is helped by false accusations, nor will the rape culture go away any faster – or even be hurt at all – because of false accusations.
I agree that the majority of our focus and concern belongs with women, with rape victims, and with trying to dismantle rape culture. I agree that innocent women in rape culture suffer, and that’s a vast injustice (and one that consumes a great deal of my thoughts). I agree that you, personally, have no responsibility to spend an iota of time on unjust accusations. And I also agree that anti-feminists use the question of false rape accusations to distract from and derail conversations about rape and rape culture.
But all of that, while absolutely true, cannot justify the idea that it doesn’t matter whether or not people suffering for a crime actually committed the crime. Of course it matters. There is not a limited supply of mattering; because injustice X matters does not mean injustice B does not matter.
Amp wrote:
Too bad most of your brothers don’t share your interest in advocacy. For all the crocodile tears shed here and on related threads about false acusations, I think that most men are shrewd enough to realize that the benefits they get from rape culture far outweigh the distinctly lesser risks of false acusation– particularly that which can be proved in court.
One of the things that struck me again and again when I started reading Ginmar’s LJ –the one where women were invited to talk anonymously about rape– was the repeated explanation that woman after woman made as to why she didn’t press charges or didn’t fight back. Very few of the rapes described in the LJ were stranger rapes. What also binds many of them together is that women assumed, and rightfully so, that nobody would believe their stories of these “nice, normal” friends, aquaintances, lovers, husbands doing these bad things.
My thoughts are also that a lot of women don’t fight back against their attackers because they, too, feel a sense of disbelief. We are “good” women, and our attacker is a “good” man. How can this be happening ? It’s certainly how I felt when I witnessed that gang rape-attempt in my teens. The mental conditioning that allows us to move with at least some sense of freedom in the larger world is the same mental conditioning that defeats us when a rapist decides to make us his target.
The day you can convince men that it’s as important to stop rape as it is to cultivate the machismo that they use to keep women in line is the day you’ll see real change. The day you convince them that the risk of being denigrated by their brothers as a pussy-whipped so-and-so is better than the risk of being falsely acused of rape is the day that you’ll see real change.
But I’m not holding my breath.
Hi Q Grrll,
I think your point is valid, although I not to sure exactly, if we could agree exactly the best way to fully address this issue; however, I have one small idea, which may or may not have been discussed before, that maybe being at least a tiny step in combating rape culture in the media and entertainment.
Now, I believe in general that in terms of the justice system, which I admit I am not an expert on, proving that a rape occurred has a higher hurdle to overcome than other crimes (okay I stating the obvious:)). For example in a murder trial, once murder has been established usually the main defense against it is self-defense whereas proving the act of intercourse took place does not in of itself prove rape e.g. in addition to intercourse the lack of consent must be proved. Now, some people would argue in order to combat this problem that the defense should need to prove that the act of intercourse was consensual rather than having the prosecution prove that a lack of consent occurred, but I not to sure how you can do that without removing the presumption of innocence.
That said; I could see in some rape cases there should be “a reversal of the burden of proof” e.g. it is up to the defense to prove consent occurred rather than the proscection that rape did not occurred. For example, lets say for instance of some type of sexual activity of sufficent time period was caught on video tape and a person alledges that rape took place, now when the charges occurs the defendants would have to prove that consent was obtained. The reason why I believe a reversal of the burden of proof would be fair in these cases is that slander and libel laws in many states and countries have a reversal of the burden of proof and what make video tape evidence similar to slander laws is that most slander law cases involve statements written statements in the newspaper, in otherword the events of what both occurred on video tapes and slander is plain to see by everyone. Now, I admit this would not be a deterent for 99% of rape cases; however, porongrahpers maybe be heavily dissuaded from creating rape sex videos if they feel like they can be easily charged with aidding and betting with the rape of a person, if a person come forward alledging rape.
Here are some of the revelant links I used in forming my opinion
http://en.wikipedia.org/wiki/Libel
http://en.wikipedia.org/wiki/Rape
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Now, some people would argue in order to combat this problem that the defense should need to prove that the act of intercourse was consensual rather than having the prosecution prove that a lack of consent occurred, but I not to sure how you can do that without removing the presumption of innocence.
Why not have the same burden as for, say, robbery? You know, “Did you or did you not consent to having your money taken from you by the defendant?” The equivalent for rape would be, “Did you or did you not consent to have intercourse with the defendant?” Oh, wait. It is the same already. It’s just that our culture assumes that you would never consent to having your money taken while you will always consent to having sex (especially het sex). And how deranged is that?
Amp is correct in his assessment that societal change must take place for the legal system, as it applies to rape, to be both effective and equal in prosecution to other crimes.
“DNA tests clear team”
Just wanted to point something out.
First, it’s quite probable that condoms were used, making DNA matching improbable, but still a standard investigative procedure.
Last week’s Durham City Council meeting was aired on-line by a local tv station.
In the meeting, one of the city council members, Howard Clement III (a Lawyer) mentioned that he had heard that not all 46 players who had DNA warrants issued for had provided samples. He further stated that he had heard that some of the players’ parents had quickly shipped the players out of state (and out of the country) so they couldn’t be compelled to provide DNA.
Now, during the meeting, Howard did come off like he was pontificating, but ever since the meeting (April 6th), I’ve closely watched the reporting. I’ve seen the Durham DA (Nifong) and the police release official reports that warrants were issued for the DNA of 46 players. I’ve seen many, many reports of defense lawyers stating that 46 samples were taken. I’ve seen newswriters report that DNA reports from the 46 players were delivered – while I’ve never seen any qote from the DA or official police report stating that 46 DNA samples were collected.
This may be shoddy reporting. The DA has never said it had RECEIVED DNA samples from 46 players. They said warrants were issued for DNA samples of the 46 white players. The DA has also said that it probably would not release the DNA test results. Why would they? They aren’t interested in keeping the case in the press. Doing so only gives more information to the defense attorneys and further taints more potential jurors, making thier jobs more difficult.
So why did we hear about this today? More than likely it was a leak provided by the defense lawyers. The DA is required to provide a copy of each report to the player from which the DNA sample was gathered. So, at lease one of the defense lawyers received negative test results. If you are that lawyer, the first thing you need to do to protect your client is leak it to the press that the results of the DNA tests were negative.
What if one of the DNA tests came back positive? We won’t hear it until charges are brought – and the DA won’t charge anyone until they feel confident in thier ability to get 3 convictions.
Well, perhaps if you had paid a little bit more attention to what I wrote you wouldn’t have egg all over your face right now. One can be a committed feminist without sacrificing reason and objective thought. This case smelled from the get go. The phony 911 call, the failure of the players to dispose of any evidence despite a 2 day window of opportunity, their willingness to take polygrpah tests, the insistence that no sex at all took place and that DNA would clear them (as opposed to the consenual defense we would expect if a rape did occur), and the shady past of the “victim” which included past arrests for ripping off clients, prostitution, drug possesion, and assualting a police officer. This was NOT a case wothty of using to advance the cause, and I tried to warn you. Yet you prefered to be smug and dismissive and now we all are going to have to deal with the backlash. Just as protestors waving Mexican flags is going to do nothing to advance the cause of immigration reform (something I also believe in) going to bat for dubious rape claims is going to do nothing for the cause of violence against women. When we become an advocate, we assume a grave responsiblity. Our credibility becomes intertwined with that of our cause. I think the entire movement needs to sit down and have an adult conversation about the mistakes that were made in the handling of this case. And giving TalkLeft an apology might be nice too. Her instincts on this case were right, your’s were wrong. And her stance is only going to enhance her credibility in the future when there really is a case worth fighting for.
Hi Jake Squid, to restate I not a lawyer so to some extent it may seem that I just pulling things from my ass:), but stating that I not 100% certain that the crime of rape and the burden of proof can be exactly analogous to robbery. (Actually after rereading your post I do not think that you are trying to indicate it should be treated as robbery rather that the law of rape should be changed, but all get back to that in a second). For example, in the case of robbery one of the elements, which I assume the prosecution most prove is that the property stolen was in the accused possession e.g. the one of the elements of robbery as stated from one of my links below…
2. Carrying away: The offender must gain immediate possession of the property and retain it in such a way as to make it immediately impossible for the rightful owner to regain possession.
Unfortunately consent is more of an abstraction in terms of being something in a person’s minds, unlike money and other property, which is a physical object e.g. without other physical proof and/or witnesses how to you establish someone “took/extracted consent” or more precisely how do establish the sexual act committed without a persons will because unlike a robbery we cannot actually see that consent was or not given we must infer whether it was given or not.
That said, I think your idea about cultural assumption in terms of having sex is interesting. Right now, at least from what I guess from a legal perspective is that the law does not assume a default presumption in terms of whether a person consents to sex or not; however, this implicitly means to establish that a rape was committed it is part of the burden of proof in rape laws to prove that there was no consent. Now, as you say Jake Squid in reality a person either commits to sexual act or not and culturally we stupidly assume that consent is the default. Now, I suppose in reality because people have sex with relatively few people they know, I can personally attest to this because I have had only one sexual relationship and that was ten years ago:), it makes more sense for the law to assume a default of no consent; therefore, an accused person in defense would have to proven the sexual act was consensual. I guess, after thinking about things this way, I can see your point in why the burden of proof should be on the defendant. The only question I have then, if we reverse the burden of proof, how do we assure that prosecutions of rape trials are not abused do to the fact the that consent in and of itself is not physical.
Some relevant or irrelevant links
Theft Law
Wikipedia Robbery
Robbery
Rape
There are women who are victims of society, victims of abusive relationships, victims of heinous crimes.
I agree.
However, this blog, in relation to the Duke lacrosse story, is just as guilty as those who do commit those types of crimes against women.
Most, if not all of the writers convicted these guys from day one. While they are guilty of horrible comments (racial slurs), the recent DNA tests show there’s little, if any evidence to charge, much less convict them of raping the accusor. If she was raped in the manner in which she said (30 minutes, beaten up, sodomized), there is NO way to leave behind no DNA, whether theirs in/on her, or their DNA under her broken finger nails that were found in the bathroom.
I’m not saying these DNA tests exonerate the players in totality. But those who jumped the gun to convict the players may need to reload with some CREDIBLE evidence. Was she raped? Don’t know. That’s the opinion of the initial medical expert. I’ll believe the nurse that she was raped at some point, by someone until I see otherwise. Was the victim raped at that house, by hose players? That’s the million dollar question and the clock’s ticking.. real fast.
Uh, teamrican, it wasn’t a phony 911 call. That, and all your other bullshit, needs to be proved. By you. Thus far you have supplied no proof but plenty of bull; ergo, my dismissal of you.
I guess you aren’t too familiar with Yeagley, the most openly racist white guy posing as a Native American. On his site, Bad Eagle, Yeagley has heaped out one vile posting after another on his hatred of African Americans. Yeagley wants to be another Dinesh D’Souza, a “minority” who can build himself a name by slandering African-Americans.
Noah, this is the second time I’ve seen someone claim Yeagley is a white guy. I hold no brief for Yeagley, but I haven’t seen any evidence. Is there evidence that he’s has only some tiny fraction of Indian heritage, or is this just rhetoric? Thanks.
Robert, please remember not to post on “feminist only” threads. Thanks.
Regarding if Yeagley is actually an Indian or not, although it would certainly be scummy of him if he is white and falsely claiming to be an Indian – and although I can see the importance of exposing frauds attempting to exploit Indian culture – in a way, it’s not relevant to our current discussion.
I guess if he’s a con man says something about his credibility, but the mere fact that he wrote the article I quoted in the post has already shot his credibility into the sewer, as far as I’m concerned.
Terribly sorry, Amp, didn’t even see that, and saw a lot of unfamiliar names so I assumed it was a free-for-all. Noah, feel free to respond to my query via email (docrocket@gmail.com). Shutting up now.
It’s not like there isn’t a precedent for white guys claiming to be Native Americans. Nasdijj, anyone?
Let’s review the facts. The neighbor claims that after the two prostitutes left the house, the party completely cleared out in less than 5 minutes. The police log indicates police arrived on the scene exactly 2 minutes after the 911 call was recieved and found no caller, and more importantly, no party. The caller herself leaves a rabling inconherent account of someone calling her a nigger. She then repeats no less than three times, the address of the lacrosse house, which, if she is truly just walking or driving by (she claims both) she has no possible way of seeing. Finally, the defense claims to have done a voice analysis which proves the caller is the second prostitute. It’s time to get real.
Yeagley associates himself with that clown David Horowitz. Therefore, I do not consider him a person of note.
2 of the lacross team identified by alleged victem, semen was found on the towel at the rape scene
This thread is open to feminist, pro-feminist and feminist-friendly posters only. If you don’t think you fall into Amp’s definition of “feminist, pro-feminist and feminist-friendly,” and you wish to make a comment, you may do so at the cross-post on Creative Destruction.
Hey, Amp! How about enforcing this one here? On the folks who insist on calling Mary Doe & her co-worker “prostitutes”? With no evidence of such? Isn’t it obvious?
I have a hard time believing that Teamrican is in any way pro-feminist.
Just saying?
Hell, yeah. Basically, he’s calling these women whores and presenting his conclusions—misogynistic as they are—as fact.
Fucking Jesus in a garbage can.
Your facts aren’t facts. To begin with, these women were.not.prostitutes.
Nice factual twist my boy.
Secondly, because I have walked, driven, run — sober and drunk — past the house in question, I know FOR.A.FACT. that the street number is EASY.TO.SEE. This house sits directly across from campus — 45 ft. from the wall around Duke. It sits maybe 20 ft. from the street. It has a shallow front yard. Anyone on the sidewalk would almost have to walk through the partiers that were in the yard — yes, this house is small, 30-40 partiers would mean that some would have to be in the yard. That is the style of these boys. This is what they do.
You don’t know jack shit, other than your personal preference to denigrate women.